Rinaldo v. Unknown El Paso County Sheriff's Deputies

          ORDER TO SHOW CAUSE

          SCOTT T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Motion to Dismiss Plaintiff's Third Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and (6), filed by Defendants Unknown El Paso County Sheriff's Deputies, Unknown Personnel of the El Paso County Bomb Squad, and Unknown Personnel of the El Paso County Hazmat Team (collectively, the “El Paso Defendants”) [#32] (the “Motion”). The Motion has been referred to this Court. [#33] This Court has carefully considered the Motion and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the Motion's disposition. For the following reasons, the Court ORDERS Plaintiff to SHOW CAUSE, if any there be, in writing on or before November 19, 2018, why this case should not be dismissed for the reasons set forth in this Order.

         I. BACKGROUND^[1]

         On or about June 30, 2016, an RV owned by Plaintiff Arick Justin Rinaldo was lawfully parked at a scenic overlook in or near the City of Manitou. [#20 at 4] On that day, upon exiting and locking the RV, Plaintiff was confronted by the defendant unknown El Paso County deputies and bomb squad personnel, who took possession of the keys to the RV. [Id.] Even though they were in possession of the keys, the unknown El Paso County deputies and bomb squad personnel used a bomb squad robot or other device to forcibly smash and break into Plaintiff's RV without a warrant. [Id. at 4, 5] As a result, the door and frame of the RV were smashed and the body of the RV buckled. [Id. at 4] The unknown El Paso County deputies and bomb squad personnel, along with the defendant unknown personnel of the Colorado State Patrol Hazmat Team and unknown personnel of the El Paso County Hazmat Team, then conducted a warrantless search of the contents of the RV, tossing all the items in the RV and destroying some of the property contained therein. [Id.]

         Plaintiff alleges that Defendant Trooper Schmidt and the defendant unknown Manitou Springs officers or deputies seized him by force and illegally detained him for approximately six to seven hours first in Trooper Schmidt's vehicle and then in the Manitou police station. [Id. at 4, 7] Plaintiff contends that unspecified defendants made defamatory and libelous statements to the press that the RV was a “Rolling Meth Lab, ” that Plaintiff had barricaded himself in the RV, and that Plaintiff's girlfriend had fled on foot. [Id.] Nothing was found in the RV to support the claim that the RV was used to manufacture methamphetamines. [Id. at 7]

         On June 28, 2017, Plaintiff filed this lawsuit. [#1] On August 2, 2017, Plaintiff filed an amended complaint. [#10] On August 4, 2017, the Court ordered Plaintiff to file an amended complaint utilizing the court-approved prisoner complaint form. [#11] On September 1, 2017, Plaintiff filed the Amended Complaint. [#12] On October 5, 2017, the Court issued an order pointing out deficiencies in the Amended Complaint and ordering Plaintiff to file a second amended complaint. [#13] On November 2, 2017, Plaintiff filed his Second Amended Complaint. [#14] On December 12, 2017, the Court issued an order pointing out deficiencies in the Second Amended Complaint and ordering Plaintiff to file a third amended complaint. [#16]

         On February 8, 2018, Plaintiff filed his Third Amended Complaint. [#20] On February 26, 2018, the Court issued an order pointing out deficiencies in the Third Amended Complaint and ordering Plaintiff to file a fourth amended complaint within 30 days of the order. [#21] Because Plaintiff failed to file a fourth amended complaint, the Court conducted its review pursuant to 28 U.S.C. § 1915A on the allegations contained in the Third Amended Complaint.^[2] [#22 at 3] The Court interpreted the Third Amended Complaint as asserting the following causes of action: (1) illegal search and seizure without due process in violation of the Fourth Amendment; (2) damages or deprivation of property in Plaintiff's RV; (3) damage to Plaintiff's RV; (4) breach of duty; (5) defamation of character/libel; (6) false imprisonment; and (7) due process. [Id. at 4] The Court dismissed the second and third claims-alleging damages to Plaintiff's RV and the property therein-as legally frivolous. [Id. at 5-6] The Court did not address the merits of Plaintiff's first, fourth, fifth, sixth, and seventh claims but instead had them drawn to a presiding judge. [Id. at 5]

         On May 9, 2018, the Clerk of Court arranged for service of the Third Amended Complaint on Defendants. [#24] On that same date, Peter Lichtman of the Office of the El Paso County Attorney (the “El Paso Attorney's Office”) purported to waive service of process on behalf of the Unknown El Paso County Sheriff's Deputies and the Unknown Personnel of the El Paso County Bomb Squad. [#25] Neither the specific sheriff's deputies nor the specific bomb squad personnel are identified in the waiver. [Id.] On May 18, 2018, Mr. Lichtman and his colleague at the El Paso Attorney's Office, Kenneth Hodges, purported to enter their appearances on behalf of “Defendants Unknown El Paso County Sheriff's Deputies, Unknown Personnel of the El Paso County Hazmat Team and Unknown Personnel of the El Paso County Bomb Squad.” [#28, 29] The Notices of Appearance failed to identify any specific sheriff's deputies, bomb squad personnel, or hazmat team personnel. [Id.]

         On June 7, 2018, the U.S. Marshals Service filed Unexecuted Process Receipts and Returns for Defendant Trooper Schmidt and Defendants Unknown Deputies of the Manitou Springs Police Department (the “Unknown Manitou Springs Defendants”). [#30, 31] The Return for Trooper Schmidt indicated that he could not be served at the provided address, because Trooper Schmidt “is retired from Colorado State Patrol” and his “current whereabouts are unknown.” [#30 at 1] The Return for the Unknown Manitou Springs Defendants indicated that they could not be served by the Marshal because the Unknown Manitou Springs Defendants are “not known to the Manitou Springs Police Department.” [#31 at 1] On August 21, 2018, the Marshal filed Returns with regard to Defendants Unknown Personnel of the Colorado State Patrol Hazardous Materials Team and Defendants Unknown Personnel of the Colorado State Patrol (collectively, the “Unknown Colorado Patrol Defendants”), indicating that they could not be served because the Colorado State Patrol was “unable to determine who to serve.” [#35, 36]

         On July 9, 2018, the El Paso Attorney's Office filed the instant Motion, on behalf of the El Paso Defendants without specifying the names of any of the specific sheriff's deputies, bomb squad personnel, or hazmat team personnel. [#32] On September 11, 2018, Plaintiff filed his response to the Motion.^[3] [#38] The El Paso Attorney's Office then filed a reply in support of the Motion on behalf of the El Paso Defendants, again without specifying the names of any of the specific sheriff's deputies, bomb squad personnel, or hazmat team personnel. [#42]

         II. ANALYSIS

         A. The El Paso Defendants' Motion

         As noted above, the El Paso Attorney's Office purported to accept service, enter notices of appearance, and file the instant Motion on behalf of the El Paso Defendants without ever specifying the identifies of the defendants, who were identified in the Third Amended Complaint (and the documents filed by the El Paso Attorney's Office) only as Unknown El Paso County Sheriff's Deputies, Unknown Personnel of the El Paso County Bomb Squad and Unknown Personnel of the El Paso County Hazmat Team. Neither the El Paso Attorney's Office nor Plaintiff has provided any “procedural basis on which an unidentified party can appear in a lawsuit and assert a defense without revealing his or her identity.”^[4] Pitre v. City of Eunice, No. 6:14-CV-02843, 2015 WL 3648763, at *1 (W.D. La. June 10, 2015) (recommending that motion brought on behalf of unidentified city police officers be denied, in part, because it “is fatally flawed”); see also Perez v. City of Hastings, No. 4:16CV3158, 2017 WL 1066574, at *4 (D. Neb. Mar. 21, 2017) (questioning “whether the named City and County defendants and their counsel have authority to respond for the as yet unidentified Doe defendants in their individual capacities and seek dismissal on their behalf”). Except in limited circumstances not applicable here, ^[5] the Federal Rules of Civil Procedure do not allow parties to proceed anonymously or under fictitious names. W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001). As the Tenth Circuit has explained:

“Proceeding under a pseudonym in federal courts is, by all accounts, ‘an unusual procedure.'” Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir.2000) (quoting MM v. Zavaras, 139 F.3d 798, 800 (10th Cir.1998)). Rule 10(a) of the Federal Rules of Civil Procedure requires that every pleading contain a caption setting forth, inter alia, “the title of the action, ” and this title must include “the names of all the parties.” Similarly, Rule 17(a) mandates that “every action shall be prosecuted in the name of the real party in interest.” See also Femedeer, 227 F.3d at 1246. The Rules provide no exception that allows parties ...